- (1.)THE State has come in appeal against an order of acquittal passed by the Sessions Judge, Wardha, in an appeal allowing it against the judgment passed by the Judicial Magistrate First Class, Wardha, convicting the accused Under Section 85 (1) (3) of the Bombay Prohibition Act and sentencing him to suffer rigorous imprisonment for one month and also to pay a fine of Rs. 25/ -.
(2.)THE accused Namdeo is apointsman working in the railway. It appears that on 17-8-1967 at about 3-15 P. M. the accused came from the branch-line with a cycle in his hand. At that time two other railway workers Janardhan and Babulal were working near the B cabin in the Wardha railway yard. The accused came and dashed against these two persons. Janardhan and Babulal objected to his conduct, but the accused retaliated and assaulted Babulal. One Umashankar who was on duty there intervened but he was also beaten. The accused did all this in a drunken state. The railway police station therefore was informed and the Head Constable of the railway police station arrived there. The Head-con stable then took the accused to the police station. He was thereafter sent for medical examination. After the necessary investigation, he was charge-sheeted for offences punishable Under Section 66 (1) (b) and also Under Section 85 (1) (3) of the Bombay Prohibition Act. The learned Magistrate relying on Karansing Balubha v. State of Gujarat. was of the view that the prosecution ought to establish that the report indicating the percentage of alcohol in the blood must be established as that of the accused and that it was obtained by the doctor himself and sent the blood phial to the Chemical Analyser. According to him. the blood phial was sent by the doctor through the police agency and therefore the Chemical Analyser's report obtained in this way should be treated as inadmissible in evidence. this Court has held in Criminal Revn. Appln. No. 23 of 1969 decided on 17/18-4-1969 (Bom.) that the Bombay Prohibition (Medical Examination and Blood Test) Rules. 1959. are directory and not mandatory and that a substantial compliance should be regarded as sufficient. Even if the police constable is Medical Officer's messenger to reach the blood phial, Rule 5 will be complied with. The learned Magistrate's view therefore is erroneous. But holding an erroneous view as he did. the learned Magistrate acquitted the accused for the offence punishable Under Section 66 (1) (b) of the Bombay Prohibition Act; but he found that the accused has committed an offence punishable Under Section 85 (1) (3) of the said Act. The matter went up in appeal and the learned Sessions Judge, after considering the evidence, came to the conclusion that the railway yard, where the B cabin was, cannot be treated as a public place. According to him it is not even a place where the public are permitted to have access as contemplated within the meaning of Section 85 (1) (3 ). Therefore, he allowed the appeal and set aside the order of conviction against the accused Under Section 85 (1) (3 ). It is against this order of acquittal that the State has come here in appeal. The only point therefore, that arises here for consideration is to see whether the order of the learned Sessions Judge is legal and proper.
(3.)THE only point for decision here is whether the place where B cabin in the Wardha Railway Yard is situated is or is not public place or is or is not a place to which the public have or are permitted to have access. The result of this appeal, therefore, will depend upon the answer to this question. Now it is true that Under Section 3 (4) of the Indian Railways Act. "railway" means a railway, or any portion of a railway, for the public carriage of passengers, animals or goods, and includes all land within the fences or other boundary marks indicating the limits of the land appurtenant to a railway. The phrase "railway" also includes all lines of rails, sidings or branches worked over for the purposes of, or in connection with a railway. That word also includes all stations, offices, warehouses, wharves, workshops, manufactories, fixed plant and machinery and other works constructed for the purposes of. or in connection with, a railway. Evidently, therefore, the word "railway" includes also the railway lines as well as the place near the B cabin in the railway yard. This is a place on the railway track where generally cabin signals are worked. It is also true that Under Section 122 (1) of the Indian Railways Act if a person unlawfully enters upon a railway, he shall be punished with fine which may extend to twenty rupees. Under Section 122 (2) if a person so entering refuses to leave the railway on being requested to do so by any railway servant, he is also punished with a fine. It is on the basis of these provisions in the Indian Railway Act that the learned Sessions Judge has held that a railway yard and the place near the B cabin where the accused was found drunk is neither a public place nor even a place where the public have access as contemplated by Section 85 (1) (3) of the Bombay Prohibition Act. The learned Government Pleader, however, contests this view and argues that the view of the learned Sessions Judge is erroneous. On the other hand, the learned advocate for the accused says that place cannot be said to be a public place as contemplated under the provisions of the Bombay Prohibition Act.